It has been reported that Russia is refusing to cooperate with the International Criminal Court (ICC) on an investigation into possible war crimes committed during the conflict between Russia and Georgia in South Ossetia in 2008.

On 27 January 2016, ICC Pre-Trial Chamber I authorised the Prosecutor to proceed with an investigation for the crimes within the ICC jurisdiction, allegedly committed in and around South Ossetia, Georgia, between 1 July and 10 October 2008. Georgia deposited its instrument of ratification to the Rome Statute of the ICC on 5 September 2003 and is cooperating with the investigation. Russia signed the Rome Statute on 13 September 2000, but has not ratified it.

According to Russian media, the Ministry of Justice has stated that Russia is unable to participate in the investigation as it has not ratified the Statute. Now, it is true that the general obligation to cooperate under Article 86 and the more specific cooperation obligations in Part 9 of the Statute are not binding on States not parties to the Statute (unless the Security Council orders a non-party to cooperate with the ICC - as has happened with Sudan: see this post).

However, as Article 87(5) of the Rome Statute provides:

(a) The Court may invite any State not party to this Statute to provide assistance under this Part on the basis of an ad hoc arrangement, an agreement with such State or any other appropriate basis.

(b) Where a State not party to this Statute, which has entered into an ad hoc arrangement or an agreement with the Court, fails to cooperate with requests pursuant to any such arrangement or agreement, the Court may so inform the Assembly of States Parties or, where the Security Council referred the matter to the Court, the Security Council.

The Court is therefore perfectly entitled to request Russia to cooperate with the investigation, and there is no international legal obstacle for Russia to cooperate with the Court even if it is not a State Party. And indeed, on 18 February 2016, the Prosecutor of the ICC (Mrs Fatou Bensouda) stated:

... my Office, and the ICC more generally, count on full cooperation fromall parties to the conflict. Timely and consistent cooperation from the parties, regardless of their status, is in the interest of an effective and efficient investigation.

In commenting on Russia's refusal to cooperate, Kevin Jon Heller has stated in his recent Opinio Juris post:

... I simply cannot understand why Russia would announce that it has no intention of cooperating with the ICC’s investigation. If the Request is any indication, Russia has very little to fear. So why not milk a little goodwill by at least pretending to cooperate with the ICC? Russia could use some good press right now, between its cynical intervention in Syria and ongoing eradication of Russian civil society. After all, it’s not like Russia couldn’t stop cooperating with the ICC down the road if the OTP ever did manage to dig up incriminating evidence.

This might be true in political terms. However, the legal picture is more complicated than this. Once Russia agrees to cooperate with the Court, it can face decisions of non-cooperation if it would simply stop cooperating and might lead to steps under Article 87(5)(b) of the Statute. As a permanent member of the Security Council, Russia would probably block any meaningful Security Council engagement under 87(5)(b), but the point is that 'pretending to cooperate' or stopping cooperation after agreeing to cooperate does carry legal consequences. It is not a decision that should be taken lightly.